Olson v. State
| Decision Date | 19 December 1973 |
| Docket Number | No. 43110,43110 |
| Citation | 287 So.2d 313 |
| Parties | James D. OLSON, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida Supreme Court |
Gerald C. Surfus, or Nelson, Stinnett, Surfus, Payne, Hesse & Cyril, Sarasota, for appellant.
John J. Blair, State's Atty., and Richard W. Seymour, Asst. State's Atty., for appellee.
This is an appeal from the decision of the District Court of Appeal, Second District, in State v. Olson, Fla.App., 267 So.2d 878, wherein the District Court held that F.S. Section 465.131, F.S.A., authorizing the Florida Board of Pharmacy and its agents to inspect retail drug establishments for the purpose of determining if the provisions of F.S. Chapter 465, F.S.A., or any regulations of the Board thereunder are being violated and to seize and secure evidence therefrom in connection with such inspection 'as may be needed for prosecution under this chapter,' is not an unreasonable exercise of the police power under the Fourth Amendment to the United States Constitution.
It is apparent that the District Court has passed upon the validity of the subject statute and that our jurisdiction to hear this appeal exists.
We readily agree with the District Court that F.S. Section 465.131, F.S.A., is constitutional. However, we do not agree with that court as to the application of the statute in the circumstances of this case.
From a careful inspection of F.S. Section 465.131, F.S.A., along with all of the provisions of Chapter 465, we do not find that warrantless searches may be made in aid of state prosecutions of prior alleged offenses under statutes other than F.S. Chapter 465, F.S.A. Particularly, we do not find that Section 465.131 authorizes warrantless searches for prosecutions under F.S. Chapter 404, F.S.A., as in this case.
F.S. Section 465.131, F.S.A. provides as follows:
'465.131 Authority to inspect.--The Florida board of pharmacy and its duly authorized agents, members and employees and the department of law enforcement and its duly authorized agents, members and employees shall have the power to inspect in a lawful manner at all reasonable hours any pharmacy or other place in the state in which drugs and medical supplies are manufactured, packed, packaged, made, stored, sold, offered for sale, exposed for sale, or kept for sale for the purpose:
'(1) Of determining if any of the provisions of this chapter, or any regulation promulgated under its authority, is being violated; and
'(2) Of securing samples or specimens of any drug or medical supply after paying or offering to pay for such sample or specimen; or
'(3) Of securing such other evidence as may be needed for prosecution under this chapter.'
A cursory reading of that section discloses that such inspections and warrantless searches and seizures are limited to aid in the enforcement of regulations which are either administrative in nature looking toward the possibility of suspensions and revocations of pharmaceutical licenses under F.S. Section 465.22(1), F.S.A., or which are prescribed as criminal violations under F.S. Section 465.18, F.S.A.
There is no authority in Section 465.131 for a warrantless search and seizure in aid of a state prosecution under F.S. Section 404.02, F.S.A. Criminal laws and enforcement procedures therefor are strictly construed. The doctrine expressio unius est exclusio alterius appears to preclude Section 465.131 from providing for warrantless searches in aid of other statutes than Chapter 465.
F.S. Section 465.18(2)(c), F.S.A. makes it a crime for a pharmacist to dispense a drug defined in F.S. Section 465.031(5), F.S.A. without first being furnished with a prescription, but the charge herein against Appellant, a pharmacist, is that he 'did illegally and feloniously deliver or cause to be delivered a central nervous system stimulant, to wit: amobarbital and methamphetamine, to one Lois Marie Schrock.'
As Appellant strenuously contends, it appears to us the warrantless search and seizure of certain prescriptions from the business records of his retail drug establishment was not relevantly connected in aid of the administrative suspension or revocation powers of the Florida Board of Pharmacy or to aid in any criminal p...
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...the scope of those inspections to required records and to enforcement of chapter 84 provisions only. Id.; see also Olson v. State, 287 So.2d 313, 314 (Fla.1973) (inspections and warrantless searches authorized under controlled substances regulations cannot be used to further investigations ......
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